SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN
`
`BARGER-GREAT SOUTH VENTURES, LLC.
`
`PLAINTIFF(s)
`
`VS.
`
`DATE FILED:
`
`CASE TYPE:
`
`CASE SUBTYPE:
`
`EQUILIBRIUM TECHNOLOGIES, INC., ET AL.
`
`DATE OF LAST ACTIVITY:
`
`9/8/2004
`
`COMPLAINT
`
`FRAUD
`
`5/7/2007
`
`DEFENDANT(s)
`
`REGISTER OF ACTIONS
`
`DATE/TIME RUN:
`
`CASE NUMBER:
`
`06/07/2022 04:02 PM
`
`CIV 043997
`
`INVOLVED PERSON/PARTY AND ATTORNEY SUMMARY:
`AUTOMATED MEDIA PROCESSING SOLUTIONS, INC. is the PLAINTIFF and is represented by: THOMPSON, RODERICK
`M.
`SCENE7 INC., A CALIFORINA CORPORATION is the DEFENDANT and is represented by: BURTT, DAVID R.
`MACK, DOUGLAS is the DEFENDANT and is represented by: BURTT, DAVID R.
`SAMANIEGO, CHRIS is the DEFENDANT and is represented by: BURTT, DAVID R.
`BIGONESS, TIM is the DEFENDANT and is represented by: BURTT, DAVID R.; KOO, JONMI N.
`ROULSTEN, KIRK is the DEFENDANT and is represented by: BURTT, DAVID R.
`NOEL, PETER is the DEFENDANT and is represented by: BURTT, DAVID R.
`REGISTER OF ACTIONS:
`09/08/2004
`CASE OPEN / ACTIVE STATUS HON. LYNN O'MALLEY TAYLOR
`09/08/2004
`FILING FEE PROCESSED: PLTF, BARGER-GREAT SOUTH VENTURES, LLC. - 293.00
`09/08/2004
`COMPLAINT/FIRST PAPER COMPLAINT FOR FRAUD, DECEIT, FRAUDULENT TRANSFER, FORECLOSURE ON
`SECURITY, CONSTRUCTIVE TRUST, BREACH OF FIDUCIARY DUTY, AND CIVIL CONSPIRACY
`SUMMONS ISSUED
`HEARING CONFIRMED FOR: 11/17/2004 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 03
`HEARING CONFIRMED FOR: 12/17/2004 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 03
`HEARING CONFIRMED FOR: 01/26/2005 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 03
`HEARING CONTINUED TO: 01/26/2005 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 03 FROM
`DATE: 11/17/2004 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: OSCH FROM DEPARTMENT: 03
`APPEARANCE DROPPED FOR 12/17/2004 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 03 DROP
`REASON: AT THE REQUEST OF J. ERLICH 11-16-04. CASE MAY SETTLE
`CASE REASSIGNED TO JUDGE HON. VERNON F. SMITH
`APPEARANCE MOVED TO: 01/26/2005 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 06 MOVE
`REASON: JUDICIAL REASSIGNMENT FROM DATE: 01/26/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE:
`OSCH FROM DEPARTMENT: 03
`APPEARANCE MOVED TO: 01/26/2005 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 MOVE
`REASON: JUDICIAL REASSIGNMENT FROM DATE: 01/26/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE:
`CMGT FROM DEPARTMENT: 03
`NOTICE OF CASE REASSIGNMENT AND NOTICE OF HEARING MAILED TO THE PARTIES
`APPEARANCE MOVED TO: 04/21/2005 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 06 MOVE
`REASON: PER EHRLICH'S LETTER OF 1/10/05 FROM DATE: 01/26/2005 FROM TIME: 09:00 AM FROM APPEARANCE
`TYPE: OSCH FROM DEPARTMENT: 06
`APPEARANCE MOVED TO: 04/21/2005 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 MOVE
`REASON: PER EHRLICH'S LETTER OF 1/10/05 FROM DATE: 01/26/2005 FROM TIME: 09:00 AM FROM APPEARANCE
`TYPE: CMGT FROM DEPARTMENT: 06
`AMENDED COMPLAINT FILED (1ST) BY ATTY. EHRLICH FOR PLTF.; ADDING DEFENDANTS: CHRIS
`SAMANIEGO; TIM BIGONESS; NIGEL WARREN; KIRK ROULSTEN; PETER NOEL AND DOES
`SUMMONS ISSUED 1ST AMENDED COMPLAINT
`PROOF OF SERVICE FILED, AS TO: DEFT, SCENE7 INC., A CALIFORINA CORPORATION NOTICE AND
`ACKNOWLEDGMENT OF RECIPT 03/31/05
`PROOF OF SERVICE FILED, AS TO: DEFT, KIRK ROULSTEN NOTICE AND ACKNOWLEDGMENT 03/31/05
`PROOF OF SERVICE FILED, AS TO: DEFT, TIM BIGONESS NOTICE AND ACKNOWLEDGMENT 03/31/05
`
`09/08/2004
`09/08/2004
`09/08/2004
`09/08/2004
`11/17/2004
`
`11/17/2004
`
`12/28/2004
`12/28/2004
`
`12/28/2004
`
`12/29/2004
`01/20/2005
`
`01/20/2005
`
`02/07/2005
`
`02/22/2005
`04/15/2005
`
`04/15/2005
`04/15/2005
`
`Disclaimer: This Register of Actions is not an official court record. For an official and/or certified record, visitors must obtain it from the Court.
`
`Page 1 of 12
`
`Akamai Ex. 1020
`Akamai Techs. v. Equil IP Holdings
`IPR2023-00332
`Page 00001
`
`

`

`SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN
`
`BARGER-GREAT SOUTH VENTURES, LLC.
`
`PLAINTIFF(s)
`
`VS.
`
`DATE FILED:
`
`CASE TYPE:
`
`CASE SUBTYPE:
`
`EQUILIBRIUM TECHNOLOGIES, INC., ET AL.
`
`DATE OF LAST ACTIVITY:
`
`9/8/2004
`
`COMPLAINT
`
`FRAUD
`
`5/7/2007
`
`DEFENDANT(s)
`
`REGISTER OF ACTIONS
`
`DATE/TIME RUN:
`
`CASE NUMBER:
`
`06/07/2022 04:02 PM
`
`CIV 043997
`
`04/15/2005
`
`04/15/2005
`04/21/2005
`
`05/04/2005
`
`05/13/2005
`05/13/2005
`05/13/2005
`05/13/2005
`05/13/2005
`05/13/2005
`06/15/2005
`
`07/18/2005
`07/20/2005
`
`08/26/2005
`
`PROOF OF SERVICE FILED, AS TO: DEFT, CHRIS SAMANIEGO NOTICE AND ACKNOWLEDGMENT OF RECEIPT
`03/31/05
`PROOF OF SERVICE FILED, AS TO: DEFT, DOUGLAS MACK NOTICE AND ACKNOWLEDMENT OF REEIPT 03/31/05
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON SMITH , REPORTER TERESA THOMAS , DEP CLK LOUISE MORRIS
`ATTORNEY JOSEPH EHRLICH APPEARED FOR PLAINTIFF
`NO APPEARANCE BY OR FOR THE DEFENDANTS
`COUNSEL REPORTS THAT ALL DEFENDANTS HAVE BEEN SERVED EXCEPT NIGEL WARREN. MEDIATION IS
`UNDERWAY. THE COURT CONTINUES THIS HEARING FOR FILING OF ALL PROOFS OF SERVICE, ANSWERS OR
`DISMISSALS TO 7/20/05 AT 9AM IN DEPT. F.
`PLAINTIFF MUST PROVIDE NOTICE OF THIS ORDER TO DEFENDANTS
`HEARING CONTINUED TO: 07/20/2005 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 06 FROM
`DATE: 04/21/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: OSCH FROM DEPARTMENT: 06
`HEARING CONTINUED TO: 07/20/2005 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 FROM
`DATE: 04/21/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT FROM DEPARTMENT: 06
`ENTERED BY: LMM
`PROOF OF SERVICE FILED, AS TO: DEFT, PETER NOEL; BY NOTICE AND ACKNOWLEDGMENT OF RECEIPT
`SIGNED ON 3-31-05
`FILING FEE PROCESSED: DEFT, SCENE7 INC., A CALIFORINA CORPORATION - 293.00 (1ST APPEARANCE)
`FILING FEE PROCESSED: DEFT, DOUGLAS MACK - 293.00 (1ST APPEARANCE)
`FILING FEE PROCESSED: DEFT, CHRIS SAMANIEGO - 293.00 (1ST APPEARANCE)
`FILING FEE PROCESSED: DEFT, TIM BIGONESS - 293.00 (1ST APPEARANCE)
`FILING FEE PROCESSED: DEFT, KIRK ROULSTEN - 293.00 (1ST APPEARANCE)
`FILING FEE PROCESSED: DEFT, PETER NOEL - 293.00 (1ST APPEARANCE)
`AMENDED COMPLAINT FILED (2ND) AMENDED COMPLAINT AGAINST SCENE7, DOUGLAS MACK, CHRIS
`SAMANIEGO, TIM BIGONESS, NIGEL WARREN, KIRK ROULSTEN, PETER NOEL FILED BY EHRLICH FOR PLTF.
`HEARING CONFIRMED FOR: 09/07/2005 AT: 09:00 AM FOR APPEARANCE TYPE: LMCV IN DEPARTMENT: 06
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON SMITH , REPORTER ELAINE NINKOVICH , DEP CLK LOUISE MORRIS
`COURT CALL APPEARANCE BY JOSEPH EHRLICH FOR PLAINTIFF
`COURT CALL APPEARANCE BY DAVID BURTT FOR ALL DEFENDANTS EXCEPT EQUILBRIUM TECHNOLOGIES
`COUNSEL'S REQUEST TO REQUEST A 90 DAY CONTINUANCE IS DENIED. COUNSEL EHRLICH INDICATES THAT
`DEFENDANT NIGEL WARREN WILL BE DISMISSED. PER COUNSEL BURTT INDICATES THAT EQUILIBRIUM
`TECHNOLOGIES WILL BE DISMISSED. THE COURT CONTINUES OSC RE: PROOF OF SERVICE TO 9/7/05. THE OSC
`RE; ANSWER TRAILS THE DEMURRER HEARING SET ON 9/7/05 THIS HEARING IS CONTINUED TO 9/7/05 AT 9AM IN
`DEPT.F
`HEARING CONTINUED TO: 09/07/2005 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 FROM
`DATE: 07/20/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT FROM DEPARTMENT: 06
`HEARING CONTINUED TO: 09/07/2005 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 06 FROM
`DATE: 07/20/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: OSCH FROM DEPARTMENT: 06
`ENTERED BY: LMM
`APPEARANCE MOVED TO: 10/12/2005 AT: 09:00 AM FOR APPEARANCE TYPE: LMCV IN DEPARTMENT: 06 MOVE
`REASON: STIPULATION SIGNED 8/26/05 FROM DATE: 09/07/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE:
`LMCV FROM DEPARTMENT: 06
`
`Disclaimer: This Register of Actions is not an official court record. For an official and/or certified record, visitors must obtain it from the Court.
`
`Page 2 of 12
`
`IPR2023-00332 Page 00002
`
`

`

`SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN
`
`BARGER-GREAT SOUTH VENTURES, LLC.
`
`PLAINTIFF(s)
`
`VS.
`
`DATE FILED:
`
`CASE TYPE:
`
`CASE SUBTYPE:
`
`EQUILIBRIUM TECHNOLOGIES, INC., ET AL.
`
`DATE OF LAST ACTIVITY:
`
`9/8/2004
`
`COMPLAINT
`
`FRAUD
`
`5/7/2007
`
`DEFENDANT(s)
`
`REGISTER OF ACTIONS
`
`DATE/TIME RUN:
`
`CASE NUMBER:
`
`06/07/2022 04:02 PM
`
`CIV 043997
`
`09/07/2005
`09/07/2005
`
`10/12/2005
`
`10/12/2005
`
`PARTIAL DISMISSAL AS TO: DEFT, NIGEL WARREN WITH PREJUDICE
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON F. SMITH , REPORTER ELAINE NINKOVICH , DEP CLK TERESA RAMIREZ
`ATTORNEY JOSEPH EHRLICH APPEARED FOR PLAINTIFF
`ATTORNEY DAVID ONGARO APPEARED FOR DEFENDANT'S
`COUNSEL STATES DEFENDANT WARREN IS DISMISSED.
`THE LAW AND MOTION MATTER IS SET FOR 10/12/05.
`CASE MANAGEMENT CONT. TO 10/12/05 @ 9:00AM.
`HEARING CONTINUED TO: 10/12/2005 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 FROM
`DATE: 09/07/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT FROM DEPARTMENT: 06
`HEARING CONTINUED TO: 10/12/2005 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 06 FROM
`DATE: 09/07/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: OSCH FROM DEPARTMENT: 06
`NO ADDITIONAL STATEMENTS ARE NEEDED.
`ENTERED BY: T. RAMIREZ
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON F. SMITH , REPORTER ELAINE NINKOVICH , DEP CLK TERESA RAMIREZ
`ATTORNEY DAVID ONGRO APPEARED FOR DEFENDANTS
`ATTORNEY JOSEPH BRUBAKER-APPEARED LATE APPEARED FOR PLAINTIFF
`PLAINTIFF'S COUNSEL CAME LATE- MATTER REHEARD.
`SANCTIONS PREVIOUSLEY ORDERED TODAY IS STRICKEN.
`CASE MANAGEMENT CONT. TO 12/01/05 @ 9:00AM.
`MR. ONGRO MUST PROVIDE NOTICE OF THIS ORDER TO ALL PARTIES
`HEARING CONTINUED TO: 12/01/2005 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 FROM
`DATE: 10/12/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT FROM DEPARTMENT: 06
`ENTERED BY: T. RAMIREZ
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON F. SMITH , REPORTER ELAINE NINKOVICH (NOT REPORTED) , DEP CLK
`TERESA RAMIREZ
`NO APPEARANCE BY OR FOR THE PARTIES
`THE COURT MAKES THE FOLLOWING TENTATIVE RULING AS FOLLOWS:
`DEFENDANTS' DEMURRER TO THE SECOND AMENDED COMPLAINT IS SUSTAINED IN PART AND OVERRULED IN
`PART. INITIALLY, THE COURT FINDS THAT PLAINTIFF'S ALTER EGO ALLEGATIONS ARE DEFICIENT. AS TO THE
`EQUILIBRIUM INDIVIDUALS, PLAINTIFF ALLEGES IN CONCLUSORY FASHION THAT THEY "TREATED EQUILIBRIUM
`AS THEIR ALTER EGO" AND "IGNORED THE CORPORATE FORM OF EQUILIBRIUM." THESE ARE CONCLUSIONS,
`NOT FACTS. THE ONLY FACTUAL ALLEGATION IS THAT "THEIR ACTIONS RESULTED IN AN
`UNDERCAPITALIZATION OF EQUILIBRIUM, AND THE DIVERSION OF EQUILIBRIUM TANGIBLE AND INTANGIBLE
`ASSETS OF EQUILIBRIUM TO THEIR OWN USES." HOWEVER, PLAINITFF'S ALLEGATIONS SHOW THAT
`EQUILIBRIUM BECAME UNDERCAPITALIZED AND LOST ASSETS AS A RESULT OF THE TRANSFER OF ASSETS TO
`SCENE7. THIS IS NOT A SITUATION WHERE THE INDIVIDUALS TREATED THE ASSETS OF EQUILIBRIUM AS THEIR
`OWN. EVEN IF IT WERE, SEVERAL FACTORS MUST BE PRESENT IN ORDER TO FIND THAT THE CORPORATION IS
`AN ALTER EGO OF THE INDIVIDUALS. (SEE UNITED COMMUNITY CHURCH V. GARCIN (1991) 231 CAL. APP.3 D 327,
`342-343, CONCURRING OPINION.)
`
`Disclaimer: This Register of Actions is not an official court record. For an official and/or certified record, visitors must obtain it from the Court.
`
`Page 3 of 12
`
`IPR2023-00332 Page 00003
`
`

`

`SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN
`
`BARGER-GREAT SOUTH VENTURES, LLC.
`
`PLAINTIFF(s)
`
`VS.
`
`DATE FILED:
`
`CASE TYPE:
`
`CASE SUBTYPE:
`
`EQUILIBRIUM TECHNOLOGIES, INC., ET AL.
`
`DATE OF LAST ACTIVITY:
`
`9/8/2004
`
`COMPLAINT
`
`FRAUD
`
`5/7/2007
`
`DEFENDANT(s)
`
`REGISTER OF ACTIONS
`
`DATE/TIME RUN:
`
`CASE NUMBER:
`
`06/07/2022 04:02 PM
`
`CIV 043997
`
`PLAINTIFF'S ALLEGATIONS ARE SIMILARLY DEFICIENT AS TO SCENE7 AND THE INDIVIDUALS ASSOCIATED WITH
`IT. PLAINTIFF'S ALLEGATIONS THAT THEY "TREATED EQUILIBRIUM AS SCENE7'S ALTER EGO" AND "IGNORED
`THE CORPORATION FORM OF EQUILIBRIUM" ARE CONCLUSIONS. FURTHER THE FACT THAT EQUILIBRIUM'S
`ASSETS WERE TRANSFERRED TO SCENE7 DOES NOT SHOW THAT THERE WAS "SUCH UNITY OF INTEREST AND
`OWNERSHIP THAT THE SEPARATE PERSONALITIES OF THE CORPORATION(S) NO LONGER EXIST(ED)." (IBID.)
`DEFENDANTS' DEMURRER TO THE SECOND CAUSE OF ACTION FOR CONSPIRACY TO DEFRAUD IS SUSTAINED.
`PLAINTIFF FAILS TO ALLEGE THAT DEFENDANTS CONSPIRED WITH CMGI OR EQUILIBRIUM, THE PARTIES WHO
`ALLEGEDLY MADE THE REPRESENTATIONS, TO DEFRAUD PLAINTIFF. INSTEAD, PLAINTIFF ALLEGES THAT
`DEFENDANTS "CONSPIRED AND AGREED WITH MONKS AND OTHERS AT EQUILIBRIUM TO EFFECTIVELY
`TRANSFER ALL OF EQUILIBRIUM'S ASSETS TO SCENE 7..." ALTHOUGH PLAINTIFF ALLEGES THAT THE
`REPRESENTATIONS WERE MADE IN ORDER TO PRODUCE THE DISMISSAL OF PLAINTIFF'S LAWSUIT AGAINST
`CMGI, THE EARLIER ALLEGATIONS SHOW THAT IT WAS BARGER WHO DISMISSED HIS LAWSUIT (E.G., RELIED).
`BARGER IS NOT THE PLAINTIFF.
`PLAINTIFF MUST SHOW THAT CMGI AND EQUILIBRIUM INTENDED TO DECEIVE PLAINTIFF AND THAT PLAINTIFF
`RELIED UPON THE REPRESENTATIONS. FINALLY, PLAINTIFF FAILS TO ALLEGE WHO MADE THE
`REPRESENTATIONS. (SEE TARMANN V. STATE FARM MUT. AUTO. INS. CO. (1991) 2 CAL. APP.4TH 153, 157.)
`DEFENDANTS' DEMURRER TO THE FOURTH CAUSE OF ACTION FOR INTERFERENCE WITH CONTRACT IS
`SUSTAINED AS FOLLOWS: A) PROMISSORY NOTE AND NON-DILUTABLE STOCK WARRANTS (56): EVEN IF THE
`COURT ASSUMES THAT THE EQUILIBRIUM INDIVIDUALS KNEW OF THESE AGREEMENTS BY VIRTUE OF THEIR
`STATUS AS OFFICERS AND MEMBERS OF THE BOARD OF DIRECTORS, PLAINTIFF ALLEGES NO FACTS SHOWING
`THAT SCENE7 AND THE INDIVIDUALS ASSOCIATED WITH IT HAD KNOWLEDGE OF THE STOCK WARRANTS.
`FURTHER, PLAINTIFF ALLEGES NO FACTS SHOWING THAT ANY OF THE DEFENDANTS HAD KNOWLEDGE THAT
`CMGI ASSIGNED THE PROMISSORY NOTE AND NON-DILUTABLE STOCK WARRANTS TO PLAINTIFF. B)
`TRANSACTION AGREEMENT AND OTHER SECURITY DOCUMENTS (57):
`AGAIN, EVEN IF THE COURT ASSUMES THAT THE EQUILIBRIUM INDIVIDUALS KNEW OF THESE AGREEMENTS,
`PLAINTIFF FAILS TO SHOW THAT SCENE7 AND THE INDIVIDUALS ASSOCIATED WITH IT HAD KNOWLEDGE OF
`THESE AGREEMENTS OR THAT ANY OF THE DEFENDANTS HAD KNOWLEDGE THAT THESE AGREEMENTS WERE
`ASSIGNED BY CMGI TO PLAINTIFF. ADDITIONALLY, THERE ARE NO FACTS SHOWING HOW DEFENDANTS
`DISRUPTED THESE CONTRACTS. FINALLY, THERE ARE NO FACTS SHOWING HOW PLAINTIFF WAS DAMAGED AS
`A RESULT OF THESE BREACHES.
`C) EMPLOYEE AGREEMENTS (58): THERE ARE NO FACTS SHOWING THAT SCENE7 OR THE INDIVIDUALS
`ASSOCIATED WITH IT HAD KNOWLEDGE OF THESE AGREEMENTS. AS TO THE INDIVIDUALS ASSOCIATED WITH
`EQUILIBRIUM, IT IS NOT CLEAR WHETHER PLAINTIFF IS REFERRING TO THEIR CONTRACTS WITH EQUILIBRIUM
`OR THE CONTRACTS OF OTHER UNIDENTIFIED EMPLOYEES WHO WENT TO WORK FOR SCENE7. IN EITHER
`EVENT, THE CAUSE OF ACTION IS IMPROPER."...(A) PARTY TO A CONTRACT OWES NO TORT DUTY TO REFRAIN
`FROM INTERFERENCE WITH ITS PERFORMANCE..." (APPLIED EQUIPMENT CORP. V. LITTON SAUDI ARABIA, LTD.
`(1994) 7CAL. 4TH 503, 514.)"...(I)T IS WELL ESTABLISHED THAT CORPORATE AGENTS AND EMPLOYEES ACTING
`FOR AND ON BEHALF OF A CORPORATION CANNOT BE HELD LIABLE FOR INDUCING A BREATH OF THE
`CORPORATION'S CONTRACT.'..." (REYNOLDS V. BEMENT (2005) 36 CAL. 4TH 1075, 1087.) AS TO ALL OF THE
`DEFENDANTS, PLAINTIFF HAS NOT ALLEGED THAT DEFENDANTS INTENTIONALLY INTERFERED WITH THESE
`CONTRACTS AND THERE ARE NO FACTS SHOWING HOW EQUILIBRIUM WAS INJURED BY THE INTERFERENCE.
`D) CUSTOMER MAINTENANCE AGREEMENTS (59): THERE ARE NO FACTS SHOWING THAT ANY OF THE
`DEFENDANTS HAD KNOWLEDGE OF THESE AGREEMENTS. PLAINTIFF DOES NOT ALLEGE THAT DEFENDANTS
`INTENTED TO INTERFERE WITH THE CONTRACTS. PLAINITFF HAS NOT CLEARLY ALLEGED HOW EQUILIBRIUM
`WAS DAMAGED BY THE INTERFERENCE. BECAUSE PLAINTIFF HAS IDENTIFIED THE NATURE OF THE
`CONTRACTS, IT DOES NOT NEED TO IDENTIFY EVERY CUSTOMER. (SEE ACCUIMAGE DIAGNOSTICS CORP. V.
`TERARECON, INC. (N.D.CAL. 2003) 260 F. SUPP. 2D 941,956.)
`
`Disclaimer: This Register of Actions is not an official court record. For an official and/or certified record, visitors must obtain it from the Court.
`
`Page 4 of 12
`
`IPR2023-00332 Page 00004
`
`

`

`SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN
`
`BARGER-GREAT SOUTH VENTURES, LLC.
`
`PLAINTIFF(s)
`
`VS.
`
`DATE FILED:
`
`CASE TYPE:
`
`CASE SUBTYPE:
`
`EQUILIBRIUM TECHNOLOGIES, INC., ET AL.
`
`DATE OF LAST ACTIVITY:
`
`9/8/2004
`
`COMPLAINT
`
`FRAUD
`
`5/7/2007
`
`DEFENDANT(s)
`
`REGISTER OF ACTIONS
`
`DATE/TIME RUN:
`
`CASE NUMBER:
`
`06/07/2022 04:02 PM
`
`CIV 043997
`
`DEFENDANTS' DEMURRER TO THE FIFTH CAUSE OF ACTION FOR BREACH OF THE COVENANT OF GOOD FAITH
`AND FAIR DEALING IS SUSTAINED AS TO THE INDIVIDUAL DEFENDANTS AND OVERRULED AS TO SCENE7. AS TO
`THE INDIVIDUALS, THOSE WHO ARE NOT PARTIES TO THE AGREEMENT ARE NOT SUBJECT TO AN IMPLIED
`COVENANT OF GOOD FAITH AND FAIR DEALING. (GRUENBERG V. AETNA INS. CO. (1973) 9 CAL. 3D 566, 576.) AS
`TO SCENE7, DEFENDANTS DO NOT ARGUE THAT PLAINTIFF HAS NOT STATED A CAUSE OF ACTION BASED UPON
`THE SCENE7-EQUILIBRIUM LICENSE AGREEMENT AND EXCLUSIVITY AGREEMENT. "ORDINARILY, A GENERAL
`DEMURRER DOES NOT LIE AS TO A PORTION OF A CAUSE OF ACTION, AND IF ANY PART OF A CAUSE OF ACTION
`IS PROPERLY PLEADED, THE DEMURRER WILL BE OVERRULED." (FIRE INS. EXCHANGE V. SUPERIOR COURT
`(2004) 116 CAL. APP. 4TH 446, 452.)
`NO OPPOSITION AND GOOD CAUSE APPEARING THEREFOR, DEFENDANTS' DEMURRER TO THE SIXTH CAUSE OF
`ACTION FOR CONVERSION-MISAPPROPRIATION OF TRADE SECRETS IS SUSTAINED.
`DEFENDANTS' DEMURRER TO THE SEVENTH CAUSE OF ACTION FOR MISAPPROPRIATION OF CORPORATE
`OPPORTUNITIES IS SUSTAINED. PLAINTIFF ARGUES THAT EQUILIBRIUM OWES PLAINTIFF A FIDUCIARY DUTY
`(SEE OPPOSING BRIEF AT 9:1-16), BUT THE CAUSE OF ACTION IS BASED UPON WRONGS COMMITTED AGAINST
`EQUILIBRIUM.
`DEFENDANTS' DEMURRER TO THE EIGHTH CAUSE OF ACTION FOR CONSPIRACY TO MISAPPROPRIATE
`CORPORATE OPPORTUNITIES IS SUSTAINED. ALTHOUGH THE COMPLAINT CONTAINS A GENERIC BOILERPLATE
`AGENCY ALLEGATION, THE FACTS DO NOT SUPPORT A CONCLUSION THAT SCENE7, MACK AND NOEL WERE
`ACTING AS AGENTS OF MONKS WHEN MONKS BREACHED HIS FIDUCIARY DUTY TO EQUILIBRIUM, (SEE EVEREST
`INVESTORS 8 V. WHITEHALL REAL ESTATE LIMITED PARTNERSHIP XI (2002) 100 CAL. APP.4TH 1102, 1104.) EVEN
`IF THE COURT WERE TO ACCEPT THE GENERAL AGENCY ALLEGATION, PLAINTIFF HAS ALLEGED NO FACTS
`SHOWING THAT SCENE7, MACK AND NOEL WERE ACTING FOR THEIR OWN BENEFIT IN ORDER TO AVOID THE
`AGENT'S IMMUNITY RULE. (IBID.)
`DEFENDANTS' DEMURRER TO THE NINTH CAUSE OF ACTION FOR INTERFERENCE WITH PROSPECTIVE
`BUSINESS ADVANTAGE IS SUSTAINED. PLAINTIFF ALLEGES NO FACTS SHOWING THAT ANY RELATIONSHIPS
`WERE DISRUPTED. DEFENDANTS' REMAINING ARGUMENTS HAVE NO MERIT. AMID V. HAWTHORNE COMMUNITY
`MEDICAL GROUP, INC. (1989) 212 CAL. APP.3D 1383 DOES NOT STAND FOR THE PROPOSITION THAT PLAINTIFF IS
`REQUIRED TO IDENTIFY EVERY CUSTOMER. THE FACTS SHOW THAT SCENE7, MACK AND NOEL INTENDED TO
`INTERFERE WITH THE RELATIONSHIP BETWEEN EQUILIBRIUM AND ITS CUSTOMERS. (SEE 31)
`DEFENDANTS' DEMURRER TO THE ELEVENTH CAUSE OF ACTION FOR VIOLATION OF STATUTORY
`DUTY/NEGLIGENCE PER SE/PRIMA FACIE TORT IS OVERRULED. DEFENDANTS AGREE PLAINTIFF HAS PROPERLY
`ALLEGED NEGLIGENCE PERE SE. "IF THE COMPLAINT STATES A CAUSE OF ACTION UNDER ANY THEORY,
`REGARDLESS OF THE TITLE UNDER WHICH THE FACTUAL BASIS FOR RELIEF IS STATED, THAT ASPECT OF THE
`COMPLAINT IS GOOD AGAINST A DEMURRER..." (QUELIMANE CO. V. STEWART TITLE GUARANTY CO. (1998) 19
`CAL 4TH 26, 38.)
`DEFENDANTS' DEMURRER TO THE TWELFTH CAUSE OF ACTION FOR LIBEL IS OVERRULED. PLAINITFF ALLEGES
`THAT "DEFENDANTS" PUBLISHED THE PRESS RELEASE. THE FACT THAT PARAGRAPH 26 IDENTIFIES THE PRESS
`RELEASE AS "SCENE7('S)...PRESS RELEASE" DOES NOT MEAN THAT IT WAS NOT PUBLISHED BY "DEFENDANTS,"
`THE CAUSE OF ACTION IS NOT UNCERTAIN SINCE DEFENDANTS CAN EASILY ADMIT OR DENY THE
`ALLEGATIONS, (WEIL AND BROWN, CAL. PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL (TRG 2005) 7:85.)
`DEFENDANTS' DEMURRER TO THE THIRTEENTH CAUSE OF ACTION FOR CONSPIRACY IS OVERRULED.
`ALTHOUGH IT IS IN CETAIN RESPECTS DUPLICATIVE OF OTHER CAUSES OF ACTION OR IS RENDERED
`MERITLESS BY VIRTUE OF THE COURT'S ORDER SUSTAINING DEMURRERS TO THE UNDERLYING CAUSES OF
`ACTION, THE CAUSE OF ACTION IS NOT DUPLICATIVE TO THE EXTENT IT ALLEGES CONSPIRACY TO CONVERT.
`AS NOTED EARLIER, "(O)RDINARILY, A GENERAL DEMURRER DOES NOT LIE AS TO A PORTION OF A CAUSE OF
`ACTION, AND IF ANY PART OF A CAUSE OF ACTION IS PROPERLY PLEADED, THE DEMURRER WILL BE
`OVERRULED." (FIRE INS. EXCHANGE, SUPRA, 116 CAL. APP.4TH AT 452.)
`THE MATTER IS NOT HEARD OR REPORTED. THE TENTATIVE RULING IS FINAL.
`ENTERED BY: T. RAMIREZ
`HEARING CONTINUED TO: 12/01/2005 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 06 FROM
`DATE: 10/12/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: OSCH FROM DEPARTMENT: 06
`STIPULATION AND ORDER TO EXTEND TIME TO FILE THIRD AMENDED COMPLAINT HON. VERNON F. SMITH
`
`10/21/2005
`
`Disclaimer: This Register of Actions is not an official court record. For an official and/or certified record, visitors must obtain it from the Court.
`
`Page 5 of 12
`
`IPR2023-00332 Page 00005
`
`

`

`SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN
`
`BARGER-GREAT SOUTH VENTURES, LLC.
`
`PLAINTIFF(s)
`
`VS.
`
`DATE FILED:
`
`CASE TYPE:
`
`CASE SUBTYPE:
`
`EQUILIBRIUM TECHNOLOGIES, INC., ET AL.
`
`DATE OF LAST ACTIVITY:
`
`9/8/2004
`
`COMPLAINT
`
`FRAUD
`
`5/7/2007
`
`DEFENDANT(s)
`
`REGISTER OF ACTIONS
`
`DATE/TIME RUN:
`
`CASE NUMBER:
`
`06/07/2022 04:02 PM
`
`CIV 043997
`
`11/04/2005
`12/01/2005
`
`12/06/2005
`12/06/2005
`12/08/2005
`12/08/2005
`12/08/2005
`12/08/2005
`12/08/2005
`12/08/2005
`12/08/2005
`
`02/10/2006
`
`02/27/2006
`
`03/15/2006
`
`03/15/2006
`
`03/15/2006
`04/10/2006
`
`AMENDED COMPLAINT FILED (3RD) BY ATTY., JOSEPH EHRLICH
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON SMITH , REPORTER ELAINE NINKOVICH , DEP CLK LOUISE MORRIS
`ATTORNEY JOHN EHRLICH APPEARED FOR PLAINTIFF
`ATTORNEY DAVID BURETT APPEARED FOR DEFENDANTS
`A THIRD AMENDED COMPLAINT HAS BEEN FILED. THERE IS A POSSIBLE DEMURRER HEARING
`HEARING CONTINUED TO: 12/22/2005 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 06 FROM
`DATE: 12/01/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: OSCH FROM DEPARTMENT: 06
`HEARING CONTINUED TO: 12/27/2006 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 FROM
`DATE: 12/01/2005 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT FROM DEPARTMENT: 06
`ENTERED BY: LMM
`APPEARANCE MOVED TO: 02/27/2006 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 MOVE
`REASON: CLERICAL ERROR FROM DATE: 12/27/2006 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT
`FROM DEPARTMENT: 06
`PARTIAL DISMISSAL AS TO: DEFT, DAVID MONKS, WITH PREJUDICE
`PARTIAL DISMISSAL AS TO: DEFT, EQUILIBRIUM TECHNOLOGIES, INC., A CA CORPORATION, WITH PREJUDICE
`ANSWER DEFT, SCENE7 INC., A CALIFORINA CORPORATION (TO 3RD AMENDED COMPLAINT)
`ANSWER DEFT, DOUGLAS MACK (TO 3RD AMENDED COMPLAINT)
`ANSWER DEFT, CHRIS SAMANIEGO (TO 3RD AMENDED COMPLAINT)
`ANSWER DEFT, TIM BIGONESS (TO 3RD AMENDED COMPLAINT)
`ANSWER DEFT, KIRK ROULSTEN (TO 3RD AMENDED COMPLAINT)
`ANSWER DEFT, PETER NOEL (TO 3RD AMENDED COMPLAINT)
`APPEARANCE DROPPED FOR 12/22/2005 AT: 09:00 AM FOR APPEARANCE TYPE: OSCH IN DEPARTMENT: 06 DROP
`REASON: ANSWERS FILED
`SUBSTITUTION OF ATTORNEY FILED, AS TO: PLTF., BARGER-GREAT SOUTH VENTURES, LLC; FORMER ATTY.
`JOSEPH EHRLICH; PRESENT ATTY. KELLY A. WOODRUFF
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON SMITH , REPORTER ELAINE NINKOVICH , DEP CLK LOUISE MORRIS
`ATTORNEY KELLY WOODRUFF APPEARED FOR PLAINTIFF
`ATTORNEY DAVID ONGARO APPEARED FOR DEFENDANTS
`COUNSEL REPORT THAT MEDIATION OCCURRED. PLAINTIFF MIGHT BE FILING ANOTHER AMENDED COMPLAINT
`SUBSTITUTING A NEW PLAINTIFF. MATTER IS CONTINUE TO FILE AN AMENDED COMPLAINT AND COMPLETE ANY
`MOTION HEARING BY 4/27/06.
`HEARING CONTINUED TO: 04/27/2006 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 FROM
`DATE: 02/27/2006 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT FROM DEPARTMENT: 06
`ENTERED BY: LMM
`AUTOMATED MEDIA PROCESSING SOLUTIONS, INC., A DELAWARE CORPORATION, DBA EQUILIBRIUM, DBA
`SUCCESSOR IN INTEREST TO BARGER-GREAT SOUTH VENTURES LLC
`AMENDED COMPLAINT FILED (4TH) BY ATTY. KELLY A. WOODRUFF ON BEHALF OF PLAINTIFF. (ADDING PLAINTIFF
`AND DELETING PLAINTIFF)
`STIPULATION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT AND ORDER HON. VERNON F. SMITH
`STIPULATION PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION HON. VERNON F. SMITH
`
`Disclaimer: This Register of Actions is not an official court record. For an official and/or certified record, visitors must obtain it from the Court.
`
`Page 6 of 12
`
`IPR2023-00332 Page 00006
`
`

`

`SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN
`
`BARGER-GREAT SOUTH VENTURES, LLC.
`
`PLAINTIFF(s)
`
`VS.
`
`DATE FILED:
`
`CASE TYPE:
`
`CASE SUBTYPE:
`
`EQUILIBRIUM TECHNOLOGIES, INC., ET AL.
`
`DATE OF LAST ACTIVITY:
`
`9/8/2004
`
`COMPLAINT
`
`FRAUD
`
`5/7/2007
`
`DEFENDANT(s)
`
`REGISTER OF ACTIONS
`
`DATE/TIME RUN:
`
`CASE NUMBER:
`
`06/07/2022 04:02 PM
`
`CIV 043997
`
`04/17/2006
`
`04/17/2006
`
`04/17/2006
`04/18/2006
`
`04/18/2006
`
`04/18/2006
`
`04/18/2006
`
`04/27/2006
`
`05/26/2006
`05/26/2006
`05/26/2006
`06/14/2006
`
`DEFTS. SCENE 7, INC., DOUGLAS MACK, CHRIS SAMANIEGO, TIM BIGONESS, KIRK ROULSTEN, AND PETER NOEL
`ANSWER PLTFS. (4TH) AMENDED COMPLAINT.
`CROSS-COMPLAINT FILED (1) BY ATTY. JONMI N. KOO FOR CRCO SCENE 7, INC., A CALIFORNIA CORPORATION
`(AGAINST AUTOMATED MEDIA PROCESSING SOLUTIONS, INC., A DELAWARE CORPORATION DBA EQUILIBRIUM;
`SEAN BARGER; RON WOOD; EQUILIBRIUM TECHNOLOGIES, INC., A DELAWARE CORPORATION)
`SUMMONS ISSUED FOR (1) CROSS-COMPLAINT
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON F. SMITH , REPORTER ELAINE NINKOVICH , DEP CLK TERESA RAMIREZ
`ATTORNEY DAVID ONGARO APPEARED FOR DEFENDANT
`EX PARTE MINUTE ORDER
`MATTER COMES BEFORE THE COURT ON DEFENDANT'S EXPARTE APPLICATION REGARDING LETTERS
`ROGATORY FOR THE DEPOSITION OF CMGI INC. IN THE COMMONWEALTH OF MASSACHUSETTS;
`MOTION(S) HEARD AND ARGUED.
`MOTION GRANTED
`COURT SIGNS THE FOLLOWING ORDERS IN OPEN COURT. GRANTING SCENE 7, INC'S EXPARTE APPLICATION
`FOR ISSUANCE OF COMMISSION AND LETTERS ROGATORY FOR OUT-OF-STATE DEPOSITION; LETTERS
`ROGATORY FOR THE DEPOSITION OF CMGI INC. IN THE COMMONWEALTH OF MASSACHUSETTS AND
`COMMISSION FOR THE DEPOSITION OF CMGI, INC IN THE COMMONWEALTH OF MASSACHUSETTS.
`ENTERED BY: T. RAMIREZ
`IT IS ORDERED: GRANTING SCENE 7, INC'S EX PARTE APPLICATION FOR ISSUANCE OF COMMISSION AND
`LETTERS ROGATORY FOR OUT-OF-STATE DEPOSITION HON. VERNON F. SMITH
`IT IS ORDERED: LETTERS ROGATORY FOR THE DEPOSITION OF CMGI, INC. IN THE COMMONWEALTH OF
`MASSACHUSETTS HON. VERNON F. SMITH
`IT IS ORDERED: COMMISSION FOR THE DEPOSITION OF CMGI, INC. IN THE COMMONWEALTH OF
`MASSACHUSETTS HON. VERNON F. SMITH
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON F. SMITH , REPORTER ELAINE NINKOVICH , DEP CLK TERESA RAMIREZ
`ATTORNEY RUTH ANN CASTRO APPEARED FOR PLAINTIFF & CRDF'S
`ATTORNEY DAVID ONGARO APPEARED FOR DEFENDANT'S & CRCO
`COUNSEL STATES THAT CROSS-DEFENDANT'S TO BE SERVED.
`CASE MANAGEMENT CONT. TO 6/28/06 @ 9:00AM.
`HEARING CONTINUED TO: 06/28/2006 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 FROM
`DATE: 04/27/2006 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT FROM DEPARTMENT: 06
`ENTERED BY: T. RAMIREZ
`ANSWER CRDF, AUTOMATED MEDIA PROCESSING SOLUTIONS, INC. TO (1) CROSS-COMPLAINT
`ANSWER CRDF, SEAN BARGER TO (1) CROSS-COMPLAINT
`ANSWER CRDF, RON WOOD TO (1) CROSS-COMPLAINT
`MINUTE ORDER POSTED
`ATTORNEY KELLY WOODRUFF APPEARED FOR PLAINTIFFS & CROSS-DEFENDANTS
`ATTORNEY DAVID ONGARO APPEARED FOR DEFENDANTS & CROSS-COMPLAINENTS
`EX PARTE MINUTE ORDER APPLICATION TO SHORTEN TIME TO HEAR CROSS-DEFENDANTS' MOTION FOR
`SANCTIONS
`
`Disclaimer: This Register of Actions is not an official court record. For an official and/or certified record, visitors must obtain it from the Court.
`
`Page 7 of 12
`
`IPR2023-00332 Page 00007
`
`

`

`SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN
`
`BARGER-GREAT SOUTH VENTURES, LLC.
`
`PLAINTIFF(s)
`
`VS.
`
`DATE FILED:
`
`CASE TYPE:
`
`CASE SUBTYPE:
`
`EQUILIBRIUM TECHNOLOGIES, INC., ET AL.
`
`DATE OF LAST ACTIVITY:
`
`9/8/2004
`
`COMPLAINT
`
`FRAUD
`
`5/7/2007
`
`DEFENDANT(s)
`
`REGISTER OF ACTIONS
`
`DATE/TIME RUN:
`
`CASE NUMBER:
`
`06/07/2022 04:02 PM
`
`CIV 043997
`
`06/15/2006
`06/21/2006
`06/21/2006
`06/28/2006
`
`07/11/2006
`07/19/2006
`
`07/19/2006
`
`07/26/2006
`
`AFTER HEARING FROM BOTH SIDES AND READING THE PLEADINGS, THE COURT OFFERS TO HEAR THE MOTION
`ON JULY 12TH. COUNSEL WOODRUFF IS NOT AVAILABLE ON THAT DAY. COURT DENIES APPLICATION TO
`SHORTEN TIME SINCE THE COURT ALREADY OFFERED 7/12/06. THE COURT COULD HEAR IT ON JULY 19, 2006 AT
`9AM IN COURTROOM F. COUNSEL SHOULD RESERVE THAT DATE AT THE LAW/MOTION DESK.
`ENTERED BY: LMM
`HEARING CONFIRMED FOR: 07/19/2006 AT: 09:00 AM FOR APPEARANCE TYPE: LMCV IN DEPARTMENT: 06
`FILING FEE PROCESSED: CRDF, SEAN BARGER - 320.00
`FILING FEE PROCESSED: CRDF, RON WOOD - 320.00
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON SMITH , REPORTER ELAINE NINKOVICH , DEP CLK LOUISE MORRIS
`COURT CALL APPEARANCE BY RUTH CASTRO FOR PLAINTIFFS AND CROSS-DEFENDANTS
`ATTORNEY DAVID ONGARO APPEARED FOR DEFENDANTS
`COUNSEL REPORT THAT SECOND ROUND OF MEDIATION HAS NOT OCCURRED.
`THERE IS A MOTION HEARING SCHEDULED FOR 7/19/06. THIS HEARING IS CONTINUED TO SAME DATE AND TIME
`AS MOTION HEARING.
`HEARING CONTINUED TO: 07/19/2006 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 FROM
`DATE: 06/28/2006 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT FROM DEPARTMENT: 06
`ENTERED BY: LMM
`HEARING CONFIRMED FOR: 08/09/2006 AT: 09:00 AM FOR APPEARANCE TYPE: LMCV IN DEPARTMENT: 06
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON SMITH , REPORTER ELAINE NINKOVICH , DEP CLK LOUISE MORRIS
`ATTORNEY RODERICK THOMPSON APPEARED FOR PLAINTIFF
`ATTORNEY DAVID ONGARO APPEARED FOR DEFENDANT
`THE COURT WILL NOT SET TRIAL DATE BECAUSE OF THE PENDING CROSS-COMPLAINT ISSUES. MATTER IS
`CONTINUED TO 9/7/06 TO SET TRIAL DATE
`HEARING CONTINUED TO: 09/07/2006 AT: 09:00 AM FOR APPEARANCE TYPE: CMGT IN DEPARTMENT: 06 FROM
`DATE: 07/19/2006 FROM TIME: 09:00 AM FROM APPEARANCE TYPE: CMGT FROM DEPARTMENT: 06
`ENTERED BY: LMM
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON SMITH , REPORTER ELAINE NINKOVICH , DEP CLK LOUISE MORRIS
`ATTORNEY RODERICK THOMPSON APPEARED FOR PLAINTIFF
`ATTORNEY DAVID ONGARO APPEARED FOR DEFENDANTS
`THE TENTATIVE RULING IS HEARD, ARGUED AND TAKEN UNDER SUBMISSION FOR THE COURT TO READ THE
`"HART" CASE AND REVIEW THE DECLARATION. THE COURT'S FINAL RULING WILL BE AVAILABLE ON JULY 26,
`2006 AT 9AM IN DEPT. F. NO FURTHER ARGUMENT WILL BE PERMITTED.
`APPEARANCE ADDED ON FOR: 07/26/2006 AT: 09:00 AM FOR APPEARANCE TYPE: LMCV IN DEPARTMENT: 06
`ENTERED BY: LMM
`CASE UNDER SUBMISSION
`MINUTE ORDER POSTED
`JUDGE/PROTEM/REFEREE VERNON F. SMITH , REPORTER NOT REPORTED , DEP CLK TERESA RAMIREZ
`NO APPEARANCE BY OR FOR THE PARTIES
`THE COURT MAKES THE FOLLOWING TENTATIVE RULING AS FOLLOWS:
`
`Disclaimer: This Register of Actions is not an official court record. For an official and/or certified record, visitors must obtain it from the Court.
`
`Page 8 of 12
`
`IPR2023-00332 Page 00008
`
`

`

`SUPERIOR COURT OF CALIFORNIA, COUNTY OF MARIN
`
`BARGER-GREAT SOUTH VENTURES, LLC.
`
`PLAINTIFF(s)
`
`VS.
`
`DATE FILED:
`
`CASE TYPE:
`
`CASE SUBTYPE:
`
`EQUILIBRIUM TECHNOLOGIES, INC., ET AL.
`
`DATE OF LAST ACTIVITY:
`
`9/8/2004
`
`COMPLAINT
`
`FRAUD
`
`5/7/2007
`
`DEFENDANT(s)
`
`REGISTER OF ACTIONS
`
`DATE/TIME RUN:
`
`CASE NUMBER:
`
`06/07/2022 04:02 PM
`
`CIV 043997
`
`PLAINTIFF AND CROSS-DEFENDANTS' MOTION FOR SANCTIONS UNDER CODE CIV. PROC. 1287, AGAINST CROSS-
`COMPLAINANT ON THE GROUND CROSS-COMPLAINANT FILED THE ORIGINAL CROSS-COMPLAINT KNOWING THE
`ALTER EGO ALLEGATIONS CONTAINED THERE HAD NO FACTUAL OR LEGAL BASIS, IS DENIED.
`THE SANCTIONS MOTION IS PROCEDURALLY DEFICIENT. THE MOTION SERVED ON CROSS-COMPLAINT DID NOT
`CONTAIN ALL THE SAME DOCUMENTS THAT WERE FILED WITH THIS COURT. (CODE CIV. PROC. 128.7 (C)(1).) THE
`NOTICE OF MOTION SERVED ON CROSS-COMPLAINANT MUST BE IDENTICAL TO THE NOTICE OF MOTION FILED
`WITH THE COURT. (SEE HART V. AVETOOM (2002) 95 CAL. APP. 4TH 414.) CROSS-DEFENDANTS SERVED A
`DRAFT MEMORANDUM OF POINTS AND AUTHORITIES. THEY DID NOT SERVE A NOTICE OF MOTION PURSUANT
`TO CODE CIV. PROC. 1010, AS STATUTORILY REQUIRED, NOR DID THEY SERVE THE DECLARATION OF KELLY
`WOODRUFF, WHICH WAS ALSO FILED IN SUPPORT OF THEIR MOTION.
`ON THE FACTS OF THIS MATTER, CROSS-COMPLAINANT IS AWARDED REASONABLE ATTORNEY FEES IN THE
`AMOUNT OF $1145.00 AS SANCTIONS AGAINST CROSS-DEFENDANTS AND THEIR COUNSEL (CODE CIV. PROC.
`128.7(C).).
`CROSS-COMPLAINT'S MOTION FOR LEAVE TO FILE A FIRST AMENDED CROSS-COMPLAINT, IS GRANTED. (CODE
`CIV. PROC. 473(A)(1), 576.) WHERE THE MOTION IS TIMELY MADE AND THE AMENDMENT WILL NOT PREJUDICE
`THE OPPOSING PARTY, IT IS ERROR TO REFUSE PERMISSION TO AMEND. (BERMAN V. BROMBERG (1997) 56 CAL.
`APP. 4TH 936, 945 ("THUS UNDER THE STATE'S LIBERAL RULES OF PLEADING, "THE RIGHT OF A PARTY TO
`AMEND TO CORRECT INADVERTENT MISSTATEMENTS OF FACTS OR ERRONEOUS ALLEGATIONS OF TERMS
`CANNOT BE DENIED." (CITATION.)")
`THERE IS NO CONTENTION OF PREJUDICE TO CROSS-DEFENDANT. IN FACT, CROSS-DEFENDANTS' COUNSEL
`OFFERED TO STIPULATE THAT IF THIS COURT DENIED IT'S SANCTION MOTION, SCENE 7'S PROPOSED AMENDED